Thoughts on Viacom v. Google

9th
Apr. × ’12
By Kevin A. Thompson

The Court of Appeals for the 2nd Circuit finally ruled on April 5, 2012 in the appeal of the Viacom v. Google (YouTube) case, Case Numbers 10-3270, 10-3342. The underlying court case from the Southern District of New York, decided June 23, 2010, was discussed during the talk I gave to IICLE. In that case, Google was granted summary judgment on all claims of direct and secondary copyright infringement due to safe harbor protection under Section 512 of the DMCA. In Thursday’s ruling, the Court vacated the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. Further, the District Court erred by interpreting the “right and ability to control” the infringing activity to require “item-specific” knowledge. Certain parts of the lower opinion were affirmed, including that three elements of YouTube’s site fall within the safe harbor, and remanded for further proceedings regarding a fourth element, namely whether YouTube syndicated any of the works at issue in this case to third parties.

There were emails which showed knowledge or awareness by YouTube of certain works, but the record was not clear whether any of the works at issue in the case were among these. The District Court will need to look into these emails on remand.

On remand, the District Court will also need to determine whether YouTube was willfully blind to allegations of infringement, as well as whether YouTube had the “right and ability to control” infringing activity. The Court envisions renewed summary judgment motions on these issues once they are fully developed. Some additional discovery may be needed.

My take on the decision is that this is a good step forward in the case. YouTube won on several issues that shows it generally qualifies for Section 512 immunity. Viacom, et al, won the right to have a further determination of whether there is some liability by YouTube for the infringements of their works on the site. I fully anticipate that either side could prevail in the end; we’ll see what the evidence the Court is asking for shows.

Stay tuned…

Posted in Cases, Copyright, DMCA, Musings | Leave a comment

Trademarks and Domain Names Webinar Recording

8th
Mar. × ’12
By Kevin A. Thompson

The recording of my webinar on “Trademarks and Domain Names” has been posted to my Firm’s blog here –
http://blog.davismcgrath.com/2012/03/08/trademarks-and-domain-names-webinar/

I covered the following topics:
- Trademark Overview
- Domain Name Overview
- Domain Name Formats
- Domain Names as Trademarks
- Domain Names Including Trademarks
- UDRP
- ACPA
- Cybersquatting and Typosquatting
- Hypotheticals

For those of you who need Illinois MCLE credit, information on requesting credit can be found there as well.

Posted in Domain Names, Speaking, Trademarks, Video | 2 Comments

SOPA and other @Cyberlaw Links

18th
Nov. × ’11
By Kevin A. Thompson

The news this week has been dominated by discussions of the Stop Online Piracy Act, or SOPA, that had congressional hearings this week. I really liked the following discussions of SOPA:

Why I Oppose the Stop Online Piracy Act (SOPA)/E-PARASITES Act

Eric Goldman has a great summary of the bill and its problems. Well recommended reading.

At Web Censorship Hearing, Congress Guns for “Pro-Pirate” Google

Nate Anderson at Ars Technica had a good summary of the SOPA testimony before Congress.

In other news:

RIAA Wants ReDigi Out Of The Business of Selling “Used” iTunes Tracks

This was the most interesting new application of the First Sale doctrine in copyright this week. As I understand the business sells a copy and not the actually sold iTunes track, this one may not turn out in ReDigi’s favor. This dispute will be worth watching.

Vint Cerf: The Government Is Going Overboard in Internet Copyright Control

On November 14th, Vint Cerf spoke to the Atmosphere conference:

“He told the audience, “Remember, governance is a big word that includes human rights, freedom of speech, economic transactions on a worldwide basis — it touches everything. It’s everywhere, and that’s why Internet governance is topic A in many corners.”

PhoneDog v. Kravitz

This lawsuit over corporate Twitter followers as “property” is quite interesting. Kravitz left PhoneDog with 17,000 followers, and instead of turning over the account he changed the name from “Phonedog_Noah” to his personal name. On a Motion to Dismiss, the Court (Northern District of California) decided to deny Kravitz’s motion. Well worth reading.

Judge Rules Feds Can Have WikiLeaks Associates’ Twitter Data

On November 10th, Judge O’Grady of the Eastern District of Virgina ruled that government prosecutors can have access to information about three Wikileaks supporters’ Twitter accounts – not the content, but the metadata. This decision has been criticized by the EFF.

Finally, I’d like to note that if people are interested in my firm’s IP Webinar series, the next webinar I’m presenting will be on December 7, 2011 on “Online Works: Copyright Registration and Enforcement.” For more information, follow this link.

 

Posted in Cases, Copyright, DMCA, First Sale Doctrine, Internet Governance, Musings, SOPA | Leave a comment

TWiL 136 and @cyberlaw Links

7th
Nov. × ’11
By Kevin A. Thompson

I was pleased to be asked back on This Week in Law, Episode 136. Denise Howell, Jay Monahan of Zynga.com, and Matt Macari of The Verge were the other panelists. It was a lot of fun! Thanks again, Denise, for having me back.

 

Also, for those who may be interested, here is the link to the recent webinar I did for my firm on “Common Trademark Application Problems.”

And now, on to this week’s @cyberlaw links -

RIAA Lawyer Says DMCA May Need Overhaul

Greg Sandoval of CNET had an interesting article, focusing on a statement during a panel discussion by Jennifer Pariser that the DMCA needed an overhaul.  She said:

“We might need to go to Congress at some point for a fix,” Pariser added. “Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions.”

 

In a World of Cybertheft, U.S. Names China, Russia as Main Culprits

A report from the Office of the National Counterintelligence Executive named China and Russia as the main bad actors in the world of cyber-espionage.

“Chinese actors are the world’s most active and persistent perpetrators of economic espionage,” said the report, “Foreign Spies Stealing U.S. Economic Secrets in Cyberspace,” which was based on the work of 14 U.S. intelligence agencies. The report also notes that “Russia’s intelligence services are conducting a range of activities to collect economic information and technology from U.S. targets.”

The Digital Death of Copyright’s First Sale Doctrine

Annemarie Bridy’s article is on the First Sale Doctrine and the effect that the Supreme Court’s denial of cert in the Vernor v. Autodesk case had on the doctrine. I heartily encourage you to read it.

 

Did Chevy Steal This Commercial Idea From a Popular Blog?

It was nice to be quoted by Matt Silverman in this Mashable article discussing the extent of copyright protection in the underlying concept of a blog.

 

Why Parents Help Children Violate Facebook’s 13+ Rule

This study by Danah Boyd, Eszter Hargittai, Jason Schultz and John Palfrey looked at the real-life application of COPPA and parents who help their children skirt its requirements. It’s well worth reading.

 

S. 978 – What Justin Bieber Has To Do With Online Streaming Bill

I was quoted in this article from the Christian Science Monitor discussing Senate Bill 978, the Commercial Felony Streaming Act.

Posted in Copyright, DMCA, First Sale Doctrine, Musings, Speaking, Video | Leave a comment

News and @cyberlaw Links

17th
Oct. × ’11
By Kevin A. Thompson

For those of you who are interested, I’ll be presenting on “Common Trademark Application Problems” on November 2, 2011 as part of my firm’s IP Webinar series. For more information and links to the free registration, click here.

Some recent links I found particularly interesting on Twitter include:

Net Neutrality Case Heads to D.C. Circuit

A challenge to the FCC’s new Network Neutrality rules will be heard by the D.C. Circuit, which in the past has been tough on the FCC.

 

Computer Virus Hits U.S. Drone Fleet

It’s a pretty sad state of affairs when higher up military leaders learn that their drones have been infected with a computer virus from reading this article in WIRED.

 

Tracking the Trackers: When Everyone Knows Your Username

Jonathan Mayer’s article describing his research into web usage tracking is an excellent read.

 

Hacked!

If you’ve ever had your email hacked, you can sympathize with this great article from the Atlantic.

Posted in Internet Governance, Privacy, Security, Trademarks, Twitter | Leave a comment

Copyright Basics webinar and @cyberlaw Links

27th
Sep. × ’11
By Kevin A. Thompson

For those of you who are interested, I’ll be presenting as part of my firm’s IP Webinar series on October 5, 2011 at 12 CDT on Copyright Basics.  It will be a lot of fun, and hopefully a good learning experience for all.  Since it’s a webinar, be prepared to ask your general copyright questions and have them answered. For more information and to register (it’s free!), click here – http://blog.davismcgrath.com/2011/09/12/register-for-copyright-basics-ip-webinar/.

This week’s @cyberlaw links are interesting to me for many reasons:

Heading Off Privacy Problems—Before They Arise

I thought this article by Julia Angwin was a good look at how some companies are undertaking “privacy-impact assessments” before undertaking new initiatives.  There’s nothing like heading off problems at the pass, and it is good to add privacy considerations to your normal checklist of items to consider before things go out the door.

 

Is Printing a Gun the Same as Buying One?

John Bigg’s article was very interesting to me because 3-d printing is becoming more prevalent. The article looks at the problems that arise when an item that would normally require a permit to purchase (the lower receiver for an AR-15 rifle) can be printed at home on the device you made. 3-d printers like Makerbot’s raise concerns, as John points out:

“I find it fascinating that we’re even asking these questions at this point. The fact that we are now able to manufacture usable weapon parts is an important step in the evolution of fabrication and manufacture and, if I were a weapons giant, I’d start rethinking my sales strategies. When a company of rebels can print their own AK-47s (a concept that is still a ways off), whose fault is it? The person who made the plans? The fabricator? The company whose rifles they copied?”

Stay tuned, this debate will have far reaching implications in years to come.

 

Typosquatting Continues to Pose Dangers to Enterprises, Consumers

Mary Roach’s article did a good job pointing out the concern with “doppelganger” websites – which are like a typical typosquatting domain, but instead of being a misspelling it’s merely missing an important dot, like “mailyahoo.com” instead of “mail.yahoo.com.”  This is one case where proactive defensive registrations can be quite helpful, which Mary recommends along with other good advice.

 

US Net Neutrality Rules Finalized, In Effect November 20

I’ve been following the Net Neutrality debate for years, and now the FCC’s still-controversial final “open-internet” rules [PDF] will be in effect on November 20, 2011. Now, the legal challenges can begin.

 

Posted in Copyright, Domain Names, Internet Governance, Musings, Privacy, Trademarks, Twitter | 1 Comment

This Week’s @cyberlaw Links

19th
Aug. × ’11
By Kevin A. Thompson

As a new feature on the blog, I will try to regularly look at articles I tweeted the links for on Twitter (@cyberlaw), and discuss them briefly. Here are some I found interesting this week:

HP Touchpad’s Fate

Jonathan Ezor’s review of the HP Touchpad I linked to last week became more timely after HP’s announcement that it was discontinuing the platform. It looks like WebOS may live on in some form, but the TouchPad itself is being phased out. Sad, really, as among Jonathan’s conclusions was the following nugget:

“With its ease of setup and support, true multitasking, Bluetooth keyboard compatibility, Flash-enabled browser, and Synergy, the HP TouchPad represents a solid choice for law firms and legal departments that want to add tablets to their technology portfolios.”

Too bad. I used Palms before they were even called Palms (I had a Pilot 1000 back in the day), and was quietly rooting for HP to do well after it acquired Palm.

Fake Apple Stores in China

On Ron Coleman’s Likelihood of Confusion blog, guest author Paul Jones offered his insight into the fake Apple Stores that were recently spotted in China. His insight isn’t that China is finding it hard to crack down on infringers, but rather the remote nature of the province and its inability to have a real store:

Kunming is the capital of Yunnan Province, in the far south of China. The province borders on Vietnam, Laos and Myanmar. It is thus far inland and is not one of the richer coastal provinces where foreign retailers first open their stores. But Kunming Prefecture has about 6 ½ million people. In other words there is demand there but no supply.

The entire article is well worth a read.

The Challenge of Producing Secure Devices

This article in Security Week was interesting for its insight into the world of developers. The pressure on developers to ship devices is so strong that they may have to ship devices with security flaws in order to meet deadlines. Chris Eng of Veracode is quoted as saying:

“I don’t think that every tiny bug, every tiny security bug, has to be fixed before it goes out the door,” he said. “Ideally you fix as many as you can but there’s always going to be some date where you have to ship stuff and you have to prioritize…but you also shouldn’t forget about them.”

This is relevant as many security issues today come from these vulnerabilities which may never be completely patched. There will always be someone who hasn’t applied the recommended security patches, etc., and thus perpetuate the problem caused by the hardware being released this way.

Copyright Termination

I liked this article by Larry Rohter on the upcoming battle over recording artists who can now file termination notices for their master recordings dating from 1978. The recording studios say no deal, however, claiming that the master recordings are works made for hire and thus not eligible for termination. As the article notes,

“Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.”

Artists already filing notices include Bob Dylan, Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels.

Posted in Copyright, Internet Governance, Musings, Security, Trademarks | Leave a comment

Securing Your Wireless Network

13th
Aug. × ’11
By Kevin A. Thompson

As I’ve discussed previously on the blog, there are many cases currently pending involving the filesharing of copyright-protected videos involving BitTorrent. Many of the potential defendants in these cases first receive notice of the lawsuit when they receive a letter from their ISP that their identity will be disclosed to the Plaintiff by a certain date. However, I’ve found that some of these potential defendants have no idea what BitTorrent is, or even why they are receiving such a letter. In talking to them, it quickly becomes obvious that many of them have not secured their wireless network properly.

Most wireless routers come out of the box with the default setting of being wide open, i.e. with no security, so anyone can use the connection who is within range of it. Many security experts recommend that manufacturers change these defaults, but that is the situation currently.

Many security experts recommend WPA2 level encryption if your device supports it. The older type, WEP, can be cracked in less than a minute with commonly available tools, so it is not recommended. It still would be better than no encryption if that is all your device supports.

A good way to find out how to secure your own wireless network is to search Google with the terms “how to secure wireless network” along with the manufacturer’s name or model number of the device. Some general advice can be found in this WikiHow article, although I do disagree with its recommendation for MAC address filtering. I’d also recommend listening to the Security Now podcasts relating to encryption, including Episode 13, at http://www.grc.com/securitynow.htm. The transcript can be found here – http://www.grc.com/sn/sn-013.htm. It’s an oldie (the show now has over 300 episodes), but that old episode is still worth listening to.

Of course, there are arguments for open wireless networks, but that should be a choice, not a default, in my humble opinion.

Posted in Copyright, Musings, Security | 1 Comment

Court awards $214 Million for DMCA Circumvention

27th
Apr. × ’11
By Kevin A. Thompson

The recent decision by the United States District Court for the Southern District of California in the Echostar Satellite LLC v. Viewtech case, Civil Case No. 07cv1273 BEN (WVG), 2011 WL 1522409 (S.D.Cal.), is interesting mainly for the amount of statutory damages awarded. The defendants had been manufacturing receivers that circumvented the copy protection in the Echostar / DISH Network service. Since the principal of the defendants is currently serving an 18 month prison term, let’s just say the matter of the infringement itself is rather settled. The defendants did not oppose the plaintiff’s motion for summary judgment.

The bare minimum the judge could award for violation of the DMCA’s trafficking provision, §1201(a)(2), was $200 per infringement, and the plaintiffs were able to prove that there were 1,074,093 infringements. Accordingly, the court awarded $214,898,600. Further, the plaintiff can seek its attorneys fees as well.

For more on the case, and to download a copy of the decision, visit Satscams.com.

Posted in Cases, Copyright, DMCA | 2 Comments

Reactions to Lessig’s Keynote Speech at ABA Techshow 2011

15th
Apr. × ’11
By Kevin A. Thompson

I was pleased to be in the room (alright, the second row) when Professor Larry Lessig gave the keynote speech for ABA Techshow 2011.

20110413-073114.jpg

In the speech, entitled “Code is Law: Does Anyone Get This Yet?“, Lessig discusses some of the problems with copyright law’s application to regulate the digital world. I can’t adequately summarize the speech; it needs to be experienced. Here is a link. Lessig makes effective use of Keynote as the presentation platform and sprinkles the speech with video clips that demonstrate the Remix culture.

I was particularly struck by his evocation of John Philip Sousa‘s concern that recorded music would stifle culture. Sousa was worried that the youth would no longer gather and sing the old songs, or the songs of the day. Lessig proposes that Sousa would approve of the Remix culture as a modern day example of what he wanted to preserve.

At the end of the speech, Lessig tied these concerns about copyright law and internet regulation into a call to action to support the grassroots organization he helped start, Rootstrikers. Lessig proposes that many of the problems with current copyright law come from issues with how our politicians are funded. I personally doubt this by itself will bring the desired change, but it can’t hurt.

The rest of Techshow was also remarkable. I enjoyed the Macintosh and e-discovery sessions. I also learned some good workflows for integrating my new iPad into my practice. All in all, it was another remarkable conference. I am looking forward to Techshow 2012, which will be from March 29-31. Perhaps I will see you there.

Posted in Copyright, Internet Governance, Techshow | 1 Comment

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